Wisconsin Civil Procedure:
A Short History

At statehood in 1848, Wisconsin's civil procedure was an unorganized agglomeration of rules developed in England, the American colonies and postcolonial New York and New England from the 16th century onward. The way in which discovery and trials were conducted depended heavily upon the individual lawyers and judges involved in each case.

In the 1840s David D. Field of New York led a national campaign to develop a single, unified American code of civil procedure. Wisconsin was one of the first states to adopt the Field Code in 1856. The code focused heavily on merging law and equity practice into one system and on simplifying pleading rules, which before the code had been notorious for encouraging prolixity and imposing harsh penalties for technical mistakes. Early legislatures also pioneered the use of discovery tools to expedite litigation such as depositions in 1849 and requests for document production and admission of the genuineness of documents in 1856.

Sporadic efforts to liberalize discovery procedures and simplify pleading and courtroom procedures continued throughout the late 19th century. For example, as the volume of tort actions increased, mental and physical examinations were allowed as part of discovery for the first time in 1898.

Starting about 1905, bar leaders throughout the United States began a concentrated effort to eliminate the "sporting theory of justice" once and for all. The movement was led in Wisconsin by Chief Justice John Winslow. The reformers' goal was to simplify pleading, discovery and trial procedures still further so as to make the issues clear at the beginning of the case, provide the parties to a lawsuit a full opportunity to learn all the facts supporting both sides of the case prior to trial and dispose of the case by summary judgment without trial if appropriate. They achieved substantial success through the reforms that the supreme court made in the 1930s, described in the main article.

The national reform movement culminated in the enactment of the Federal Rules of Civil Procedure in 1937. The Wisconsin bar felt that the state's procedural rules were just as good as the new federal rules and were similar enough that no change in state rules was necessary. But national bar leaders and the U.S. Supreme Court continued to refine the federal rules, and by the early 1970s many Wisconsin bar leaders felt that state rules suffered in comparison. After lengthy discussion and study, the Wisconsin code of civil procedure was reorganized and reformed to correspond closely to the federal rules, and the Wisconsin Supreme Court adopted the changes in 1976. The court has continued to refine Wisconsin's rules in recent years, most notably in 1993 to encourage early settlement discussions and resolution of disputes outside the courts.